Against Intellectual Monopoly

copying.35
    That, even at the very personal level of our own daily moral judgment, we
agree with such evaluation - as, apparently, do tens of millions of Americans
and other people around the world - should be quite clear, by now. That a
much more explicit and transparent public debate about such moral issues
is long overdue seems to us obvious exactly because of the contradiction that
not just the two of us but everyone we know faces daily. Although the law
and official public morality sternly state that it is wrong, people repeatedly
copy digital and nondigital copyrighted materials for noncommercial uses -
and without guilt.
    It is somewhat comforting, therefore, that a growing number of European
judges appear to be coming to the same conclusion as the laypeople. Recent
rulings in Denmark and Spain first, and in Italy just recently, asserted that
copying for private use and with no intention of extracting commercial
profit does not violate fair use and should not be punished.

The Ugly
    Whether Walt Disney will get to continue its monopoly of Mickey Mouse
does not seem like an issue that should lead either to revolt or nonviolent
insurrection. But have no doubt: intellectual monopoly threatens both our
prosperity and our freedom - it threatens to kill the goose that laid the
golden eggs - to strangle innovation all together.
    This might seem an exaggerated statement, made only to stir controversy - and to sell a few more copies of our copyrighted book. Yet, despite the
fact that by 1433 the great Chinese explorer Cheng Ho's fleets had explored
Africa and the Middle East, in the subsequent centuries the world was
colonized by Europeans and not by the Chinese.36 The monopolists of the
Ming Dynasty saw a threat to their monopoly - which was then a monopoly
of intellectual and administrative power - in the innovative explorations
of Cheng Ho and forced him to stop. This lead to a static, inward-looking,
and regressive regime, where emperors ruled under mottos such as "Stay
the Course" and "Do Nothing," and where innovation and progress not
only faltered but were progressively replaced by obsolescence, regression,
and, eventually, poverty. And so it is that in the United States we celebrate
Christopher Columbus Day rather than Cheng Ho Day.
    "Stay the Course," Forbidden City, Beijing. Photo by authors, 2004.

    On a smaller scale, but with a no less real impact on world history, we
find that intellectual property has delayed the development of the steam
engine, the automobile, the airplane, and innumerable other useful things.
This took place at a time before the United States became the sole dominant
world power, and before a system nearly as noxious as the current system
in the United States and the European Union was in place. It took place
during a time when very many countries were still competing for world
primacy, and the collusive pact among intellectual monopolists that our
modern trade agreements have been built to enforce was not in the cards.
If the Wright brothers preferred litigation to invention, at least the French
were free to develop the airplane. If Gottlieb Daimler and Karl Benz were
the first to build a practical automobile powered by an internal-combustion
engine, their German patent did not prevent John Lambert, only six years
later, from developing America's first gasoline-powered automobile. Nor
did it prevent the Duryea brothers, shortly after, from founding America's
first company to manufacture and sell gasoline-powered vehicles.37
    Where, today, is a software innovator to find safe haven from Microsoft's
lawyers? Where, tomorrow, will the pharmaceutical companies be that will
challenge the patents of Big Pharma and produce drugs and vaccines for
the millions dying in Africa and elsewhere? Where, today, are courageous
publishers, committed to the idea that accumulated knowledge should be
widely available, defending the Google Book Search initiative? Nowhere, as
far as we can tell, and this is a bad omen for the times to come. The legal
and political war between the innovators and the monopolists is a real one,
and the innovators may not win, as the forces of "Stay the Course" and "Do
Nothing" are powerful and on the rise.
    Certainly, the basic threat to prosperity and liberty can be resolved
through sensible reform. But intellectual property is a cancer. The goal
must be not merely to make the cancer more benign but ultimately to get
rid